New Twists in The Case

By MICHAEL DUFFY

Criminal lawyer Kerry Sutton of Durham, N.C., admires local district attorney Mike Nifong. She thinks the Durham county prosecutor is ethical and honest--in short, a solid lawyer. "I have a campaign sign of his in my front yard," she said last week. But Sutton, who is representing one of the 45 Duke lacrosse players who have not been charged in the alleged rape and kidnapping in Durham last month, takes a different line when it comes to Nifong's handling of the controversial case. "I think he's made some decisions I would not have," she said.

Such tentative second-guessing was the least of Nifong's problems. No sooner had he brought indictments against two members of the Duke squad for the March 13 episode than he found himself facing an army of lawyers stretching from Main Street in Durham to some of the most prestigious firms in Washington and New Jersey. Duke's lacrosse team draws students from exclusive private schools in the mid-Atlantic states, and many of the players' families are well connected and ably represented. Within days, the legal battalion gained some ground. New evidence--unseen by Nifong before the indictments-- emerged that could exonerate one of the suspects.

And so a case that from the start had been ghastly to ponder became even messier. The defense lawyers criticized Nifong for bringing the case before he did his homework. They accused him of trying the case in the media. And they whispered that politics was involved. Nifong, they said, was rushing things to show some progress on a case that is racially charged--black victim, white suspects--before May 2, when he seeks election against two Democratic rivals in a county that is 50% white and 40% African American.

Nifong, 55 and a seasoned prosecutor who has tried more than 300 felony cases, granted over 50 media interviews before bringing the indictment. But he has largely clammed up for now. A local attorney who spoke with Nifong last week told TIME the D.A. has no intention--nor any history--of backing down. "He is convinced from the evidence that he has made the right choices," the attorney said.

Much of what transpired on Monday, March 13, at 610 North Buchanan is still unknown or in dispute. What is not is that late that evening, between 30 and 40 members of the Duke lacrosse team gathered at the off-campus house shared by three of the co-captains. The featured entertainment: a pair of black strippers hired for $800 by one of the co-captains using a false name.

According to a court paper based on what the accuser told police, what happened next is this: The two women arrived "around 11:30 p.m." and began their show shortly thereafter. Within 10 minutes, the women halted their act after the men "began to get excited and aggressive." One player held up a broomstick and said, "I'm gonna shove this up you." The two women exited the house and got into a car. One of the suspects approached the car and coaxed the two dancers back inside. Once there, the women were separated. Two men pulled the younger dancer, 27 and a mother of two, into a bathroom. A third man joined them. For the next 30 minutes, the victim told police, she was raped, sexually assaulted and sodomized. She claims she was also "hit, kicked and strangled."

The two women left the party at a time and in a condition that are not yet clear. They drove to a nearby grocery store, where the woman who was not attacked, Kim Roberts, asked for help. A security guard called the police. Around 2:30 a.m., the victim reported to the Duke University Medical Center emergency room. An examination found injuries "consistent with" anal and vaginal sexual assault.

Police found the victim's makeup kit, cell phone and ID at the party house three days after the bash. Nifong won a court order compelling all team players (except the team's lone black member) to provide DNA samples. And on April 18, he had two sophomores, Reade Seligmann, 20, and Collin Finnerty, 19, arrested on charges of rape, sexual offense and kidnapping. Within a few days of his arrest, Seligmann was able to put forward evidence that suggested he might not be one of the assailants. He admitted attending the party, but reportedly produced telephone and bank records to show that he had called a taxi at 12:14 a.m., was picked up by 12:20 a.m., withdrew money from an ATM at 12:24 a.m. and was in his dorm by 12:46. His taxi driver, Moez Mostafa, confirmed his account. If Seligmann participated in what is alleged to have been a 30-minute assault, it would have had to begin within minutes of the time the women arrived, "around 11:30 p.m."

If Finnerty has an alibi, he has yet to produce it. In the meantime, his arrest has put a spotlight on an earlier brush with the law. It could jeopardize a deal that allowed Finnerty to avoid trial on a charge of assaulting a man in Washington last November after making a slur about his sexual orientation. In the Durham case, defense lawyers for Finnerty and the others are wondering about the DNA tests--the second round, as it turns out. The first round came back negative, defense lawyers say, an outcome that sent Nifong scrambling for a more detailed set from a different lab. Results are due this week.

The players' lawyers--there may be as many as 50 or more working directly or indirectly on the team's behalf--have begun to test the other weaknesses in the case. The victim faced an array of criminal charges in 2002, when she allegedly stole a car, ran some traffic signals and assaulted an officer trying to make an arrest. The second stripper, Roberts, 31, told the Raleigh News and Observer last week she thinks the suspects are guilty, but added, "I was not in the bathroom when it happened, so I can't say a rape occurred." She wrote an e-mail to a New York City public-relations firm last week that read, "I found myself in the center of one of the biggest stories in the country. I'm worried about letting this opportunity pass me by without making the best of it and was wondering if you had any advice as to how to spin this to my advantage."

Many of the uncertainties in Nifong's case would be overcome if he had a single witness from the lacrosse squad to back the women's story. Police have pressed the Duke players to cooperate, and Nifong has said he is still hunting for the third man in the bathroom. "I would like to think," Nifong said last month, "that somebody has the human decency to call up and say, 'What am I doing covering up for a bunch of hooligans?'" There is evidence that some players conspired to hide their identities that night. Court papers state that the alleged rapists used false names--"Adam," "Bret" and "Matt"--to refer to one another in the bathroom. And the victim told police she was told the bash was a gathering of Duke track and baseball players. If the team members are obeying a code of silence to protect a friend, even defense lawyers acknowledge it is unlikely to last.

Nifong has a reputation for fair play. He is a Little League umpire on weekends, and even lawyers who may face him in this case say he is competitive but uncommonly decent in court. At a candidates' debate, he admitted it was unlikely that many in the audience had ever heard of him before a few weeks ago. They certainly have now.

With reporting by Reported by Greg Fulton/ Atlanta, Siobhan Morrissey, Sarah Kwak/ Durham, Lisa McLaughlin/ New York, Adam Zagorin, Elaine Shannon/ Washington